Case 3:17-cv EMC Document 46 Filed 01/05/18 Page 1 of 22

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1 Case :-cv-0-emc Document Filed 0/0/ Page of MICHAEL CONNETT, ESQ., CA Bar No. 00 CHRIS NIDEL, ESQ., D.C. Bar No. 0 (to be admitted pro hac vice FOOD & WATER WATCH Franklin St., Suite 0 Oakland, California Telephone: ( -00 Facsimile: ( -0 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AT SAN FRANCISCO FOOD & WATER WATCH, et al., vs. Plaintiffs, U.S. ENVIRONMENTAL PROTECTION AGENCY, et al. Defendants. Civ. No. -CV-0-EMC PLAINTIFFS OPPOSITION TO THE FEDERAL DEFENDANTS MOTION TO LIMIT REVIEW TO THE ADMINISTRATIVE RECORD AND TO STRIKE PLAINTIFFS JURY DEMAND DATE: January, 0 TIME: :0 pm COURTROOM: No., th Floor 0 i

2 Case :-cv-0-emc Document Filed 0/0/ Page of 0 TABLE OF CONTENTS I. INTRODUCTION... II. ARGUMENT... A. THE PLAIN MEANING AND LEGISLATIVE HISTORY OF SECTION SHOWS THAT TSCA CITIZEN SUITS ARE ORDINARY CIVIL ACTIONS FOR WHICH THE NORMAL RULES OF DISCOVERY APPLY.... Section Citizen Suits Are Civil Actions, Not Petitions for Judicial Review.... De Novo Proceeding Is an All-Encompassing Term that Includes Both the Standard and Scope of Review.... Plaintiffs Need Only Set Forth the Facts in their Administrative Petition, But Must Prevail by a Preponderance of the Evidence in Court.... Section Specifically Allows for Expert Witnesses, and Thus Necessarily Contemplates Expert Discovery... B. REILLY CONFIRMS THAT TSCA CITIZEN SUITS ARE NOT LIMITED TO THE ADMINISTRATIVE RECORD; TRUMPETER S PASSING COMMENT TO THE CONTRARY IS INCOMPATIBLE WITH KRAAYENBRINK... C. THE PLAIN LANGUAGE OF SECTION IS SIMILAR TO (BUT CLEARER AND STRONGER THAN A CITIZEN SUIT STATUTE THAT THE SUPREME COURT HELD PROVIDES FOR DE NOVO SCOPE OF REVIEW... D. EPA S ARGUMENTS DO NOT WITHSTAND SCRUTINY.... EPA s Assertion About What Congress Intended Flatly Contradicts the Legislative History of Section.... The Plain Meaning of the Words Such Petition Is Not Interchangeable with Administrative Record.... Congress Unequivocally Waived EPA s Sovereign Immunity.... EPA Cites APA Case Law as Authority for the Scope of Review, But APA Does Not Apply to Section De Novo Proceedings.... EPA Cites ERISA Case Law as Authority for the Scope of Review, But ERISA Only Provides for a De Novo Standard of Review and Is Thus Inapposite.... The Fact that Plaintiffs Had an Opportunity to Make Their Case to EPA Is Not a Basis for Denying a De Novo Proceeding... III. CONCLUSION... ii

3 Case :-cv-0-emc Document Filed 0/0/ Page of 0 TABLE OF AUTHORITIES Cases Asarco, Inc. v. U.S. Evntl. Prot. Agency, F.d (th Cir Barnhart v. Sigmon Coal Co., U.S. ( Bennett v. United States, F.d (Ct. Cl.... Califano v. Yamasaki, U.S. (.... Callejo v. Resolution Tr. Corp., F.d (D.C. Cir.... County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, U.S. (... Democratic Leadership Council, Inc. v. United States, F. Supp. d (D.D.C Doe v. United States, F.d (D.C. Cir.... Evntl. Def. Fund v. Reilly, 0 F.d (D.C. Cir passim Evntl. Def. Fund v. Thomas, F. Supp. 0 (D.D.C.,...,, Ewing v. C.I.R., T.C. (00... Federal Energy Regulatory Comm n v. City Power Marketing, LLC, F. Supp. d (D.D.C Firestone Tire & Rubber Co. v. Bruch, U.S., (..., Fla. Power & Light Co. v. Lorion, 0 U.S. (... Hackley v. Roudebush, 0 F.d (D.C. Cir.... Hall v. Norton, F.d (th Cir Hyatt v. Kappos, F.d 0 (Fed. Cir. 0,...,,, In re Swanson, B.R. (Bankr. C.D. Ill Kappos v. Hyatt, U.S. (0... passim McClelland v. Andrus, 0 F.d (D.C. Cir.... Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, F.d (th Cir.... N.H. Fire Ins. Co. v. Scanlon, U.S. 0 (0... Oregon Nat. Res. Council v. Allen, F.d (th Cir San Luis & Delta-Mendota Water Authority v. Locke, F.d (th Cir Saunders v. United States, 0 F.d (th Cir..... Sheet Metal Workers v. EEOC, U.S. (... Trumpeter Swan Society v. E.P.A., F.d (D.C. Cir U.S. Dep t of Energy v. Ohio, 0 U.S. 0 (.... U.S. v. Bloom, F.d (th Cir.... W. Watersheds Project v. Kraayenbrink, F.d (th Cir. 0..., Washington Toxics Coal. v. Evntl. Prot. Agency, F.d (th Cir Wildearth Guardians v. U.S. Fed. Emergency Mgmt. Agency, No. CV --PHX- MHM, 0 WL 0 (D. Ariz. Mar., 0... WWC Holding Co. v. Sopkin, F.d (th Cir Federal Rules Fed. R. Civ. Proc.... Fed. R. Civ. Proc. (b... Fed. R. Civ. Proc.... iii

4 Case :-cv-0-emc Document Filed 0/0/ Page of Statutes U.S.C. (a... U.S.C. (b..., U.S.C. (c... U.S.C. 0(b(... U.S.C. 0(b(...,, U.S.C. 0(b(... U.S.C. 0(b((A..., U.S.C. 0(b((B... passim U.S.C. 0(b((C... U.S.C. 0(g... U.S.C...., U.S.C Other Authorities 0 Fed. Reg.... BLACK S LAW DICTIONARY (d ed MERRIAM-WEBSTER DICTIONARY (online ed.... S. Rep. No. - (... passim 0 iv

5 Case :-cv-0-emc Document Filed 0/0/ Page of 0 I. INTRODUCTION EPA asks this Court for a sweeping order that would exempt this civil action from Federal Rule of Civil Procedure (b and deny Plaintiffs their right to discovery. This request is not only incompatible with the plain meaning of the Toxic Substances Control Act (TSCA, but runs directly counter to Congress s clearly expressed intent in the legislative history. Congress has commanded, without exception, that TSCA citizen petitioners shall be provided a de novo proceeding. U.S.C. 0(b((B (emphases added. Federal courts have long recognized that a de novo proceeding is an all-encompassing term that includes both the standard and scope of review. E.g., Environmental Defense Fund v. Reilly, 0 F.d, 0 (D.C. 0. Consistent with this, the Senate Report on the TSCA bill states, in no uncertain terms, that Congress provided the de novo proceeding for the purpose of develop[ing] a record. S. Rep. No. -, at (, reprinted in U.S.C.C.A.N., 0. As with analogous citizen suit statutes, therefore, the parties to this action are free to introduce new evidence... subject only to the rules applicable to all civil actions, the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Kappos v. Hyatt, U.S. (0. The Court should thus deny EPA s motion for a protective order in its entirety. II. ARGUMENT A. THE PLAIN MEANING AND LEGISLATIVE HISTORY OF SECTION SHOWS THAT TSCA CITIZEN SUITS ARE ORDINARY CIVIL ACTIONS FOR WHICH THE NORMAL RULES OF DISCOVERY APPLY In determining whether the normal rules of discovery should apply to a civil action in federal court, Federal Rule of Civil Procedure is the logical place to start. Federal Energy Regulatory Although Plaintiffs maintain their position that factual findings in Section civil suits are within the province of a jury, Plaintiffs have elected to withdraw their jury demand, thus mooting EPA s motion to strike.

6 Case :-cv-0-emc Document Filed 0/0/ Page of 0 Comm n v. City Power Marketing, LLC, F. Supp. d, (D.D.C. 0. Rule provides that the Federal Rules of Civil Procedure govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule. Fed. R. Civ. Proc. (emphasis added. Rule contains no exception for TSCA citizen suits. Fed. R. Civ. Proc.. The Federal Rules of Civil Procedure thus govern this case, absent congressional intent to the contrary. Congress has the authority to specify that certain types of actions are governed by procedures other than the Federal Rules, but a clear expression of such congressional intent is necessary before a court should depart from the Federal Rules. Id. (citing N.H. Fire Ins. Co. v. Scanlon, U.S. 0, 0 & n. (0 and Califano v. Yamasaki, U.S., 00 (. As set forth herein, the plain language of Section provides no clear expression of Congress s intent to exclude TSCA citizen suits from the normal Federal Rules. Indeed, the plain meaning and legislative history of Section show that TSCA citizen suits are ordinary civil actions for which the ordinary rules of discovery should apply.. Section Citizen Suits Are Civil Actions, Not Petitions for Judicial Review Section refers to TSCA citizen suits as civil action[s]. U.S.C. 0(b((A ( [T]he petitioner may commence a civil action in a district court of the United States to compel the Administrator to initiate a rulemaking proceeding as requested in the petition. (emphasis added. By contrast, Section of TSCA refers to judicial challenges of rules issued by EPA as petitions for judicial review. U.S.C. (a ( [A]ny person may file a petition for judicial review of such rule or order with the United States Court of Appeals for the District of Columbia Circuit.... (emphasis added. Notably, the word review does not appear in U.S.C. 0(b((B.. De Novo Proceeding Is an All-Encompassing Term that Includes Both the Standard and Scope of Review Section provides that plaintiffs who file a civil action shall be provided an opportunity to have such petition considered by the court in a de novo proceeding. U.S.C. 0(b((B

7 Case :-cv-0-emc Document Filed 0/0/ Page of 0 (emphasis added. As Justice Ginsburg has explained, [d]e novo means here, as it ordinarily does, a fresh, independent determination of the matter at stake; the court's inquiry is not limited to or constricted by the administrative record, nor is any deference due the agency's conclusion. Doe v. United States, F.d, (D.C. Cir. ; accord Saunders v. United States, 0 F.d, (th Cir.. While there are certain laws that limit a court s de novo review to either the standard or scope of review, Congress did not carve out any such limitation in Section. Instead of limiting the court s de novo review to the standard or the scope, Congress used the all-encompassing term de novo proceeding. A proceeding is a legal action and includes all acts and events between the time of commencement and the entry of judgment. BLACK S LAW DICTIONARY (d pocket ed. 00; MERRIAM-WEBSTER DICTIONARY (online ed., (accessed Jan., 0. Under its plain and ordinary meaning, therefore, de novo proceeding is broad enough to encompass both the standard and scope of review. In fact, federal courts have repeatedly used the term de novo proceeding in just this manner. Under the Employee Retirement Income Security Act ( ERISA, courts must use a de novo standard of review when reviewing benefit determinations of plan administrators. Firestone Tire & Rubber Co. v. Bruch, U.S.,, (. Although the statutory text of ERISA does not explicitly identify what the standard of review should be, the Supreme Court has held that principles of trust law require it to be de novo, unless the benefits plan invests the administrator with discretion. Id. In considering citizen suits under the Endangered Species Act (ESA, the Ninth Circuit has held that courts are not constrained by the APA as to the scope of review, but are constrained by the APA as to the standard of review. W. Watersheds Project v. Kraayenbrink, F.d, (th Cir. 0 (discussing scope of review; Oregon Nat. Res. Council v. Allen, F.d, (th Cir. 00 (discussing standard of review. While courts are not limited to the administrative record in ESA citizen suits, the scope of review is not as broad as it is in TSCA citizen suits because the ESA statute does not provide for de novo proceedings ( U.S.C. 0(g, and ESA citizen suits are generally challenging agency rules or orders that have undergone the full notice and comment process. See, e.g., Hyatt v. Kappos, F.d 0, (Fed. Cir. 0, aff'd and remanded, U.S. (0 ( Since it is a de novo proceeding, the [agency] findings and fact-based rulings are not reviewed on the deferential substantial evidence standard, and the methodology of analysis of the evidence does not depend on whether the [agency] had also received the same evidence. (emphases Continued on the next page

8 Case :-cv-0-emc Document Filed 0/0/ Page of 0 Section s use of the all-encompassing term de novo proceeding takes on added significance when read in the context of Section. In Section, Congress specifically differentiated the standard of review from the scope of review, and provided specific guidance as to both. See U.S.C. (b & (c. Specifically, Congress instructed that the standard of review for Section cases be governed by the Administrative Procedures Act (APA, U.S.C. (c (citing U.S.C. 0, and identified the scope of information to be reviewed as the administrative record plus certain additional oral and written presentations. U.S.C. (b. Section demonstrates that Congress was well aware when drafting TSCA of the difference between the standard and scope of review, as well as the value of providing guidance to reviewing courts if different rules apply to each. Congress s use of the all-encompassing term de novo proceeding in Section, therefore, evinces Congress s intent that the de novo proceeding encompass both the standard and scope of review. See Barnhart v. Sigmon Coal Co., U.S., (00. In fact, the legislative history leaves no room for a contrary interpretation, as the Senate Report for the TSCA bill states that the district court will gather[] evidence and that a de novo procedure is essential to provide the opportunity to develop... a record. S. Rep. No. -, at, ( (emphases added, reprinted in U.S.C.C.A.N., at, 0. Continued from the previous page added; Callejo v. Resolution Tr. Corp., F.d, 0 n. (D.C. Cir. (characterizing de novo proceedings as de novo trials and distinguishing them from de novo reviews that are limited to the administrative record; Hackley v. Roudebush, 0 F.d, (D.C. Cir. (treating the term de novo proceeding as interchangeable with the term de novo trial ; Bennett v. United States, F.d, (Ct. Cl. (using term de novo proceeding to discuss a trial in which both parties introduce[ed] evidence in this court not previously presented before the Board ; Democratic Leadership Council, Inc. v. United States, F. Supp. d, 0 (D.D.C. 00 (stating that because tax refund cases are de novo proceedings, the court s determination of the plaintiff's tax liability... does not require (or even ordinarily permit th[e] court to review findings or a record previously developed at the administrative level. (citation omitted; Ewing v. C.I.R., T.C., (00, vac d on other grounds, F.d 0 (th Cir. 00 ( Of course, in situations where Congress has provided for de novo proceedings in the reviewing court, the record rule by its terms does not apply..

9 Case :-cv-0-emc Document Filed 0/0/ Page of 0. Plaintiffs Need Only Set Forth the Facts in their Administrative Petition, But Must Prevail by a Preponderance of the Evidence in Court Section draws a distinction between the information required to prevail at the administrative level with the information required to prevail in district court. This distinction helps to explain why Congress provided for the de novo proceeding. At the administrative level, the petitioner need only set forth the facts, whereas at the judicial level, the petitioner must produce evidence. Compare U.S.C. 0(b( with 0(b((B (emphases added. The facts asserted in an administrative petition are not synonymous with the evidence to be produced in court. For starters, Section provides no requirement that the petitioners support their asserted facts at the administrative level with any accompanying documentation, let alone competent expert testimony. Instead, Section places the burden of vetting the facts on the EPA. See id. 0(b(. Further, Section gives the EPA absolute discretion in what investigative procedures it will use to vet the facts; indeed, EPA has the option of conducting no investigation at all. See id. ( The Administrator may hold a public hearing or may conduct such investigation or proceeding as the Administrator deems appropriate in order to determine whether or not such petition should be granted. (emphasis added; Evntl. Def. Fund v. Thomas, F. Supp. 0, 0 (D.D.C., aff'd sub nom. Evntl. Def. Fund v. Reilly, 0 F.d (D.C. Cir. 0 ( The statute grants EPA absolute discretion to deny petitions for any reason; indeed, the statute expressly contemplates that the agency may take no action on a petition at all.. The only requirements that Section imposes on the EPA is that the Agency make its decision within 0 days and that it publish its reasons for denying the petition should it decide to do so. Id. 0(b(. Accordingly, the administrative record (such that it can even be characterized as such may Even though not required by the statute, Plaintiffs did attached supporting documentation to their Petition. But this supporting documentation is not evidence. Rather it is material that experts can reasonably rely upon to provide expert testimony, which would be evidence. and Plaintiffs intend to offer such testimony at trial. The Senate Report suggests that Congress did not consider the petition and EPA s reasons for denial to constitute an administrative record. See S. Rep. No. -, at (, reprinted in U.S.C.C.A.N., 0 ( In a judicial review of [EPA s] denial of a citizen s petition or failure to act, there would be no record upon which the review could be based.....

10 Case :-cv-0-emc Document Filed 0/0/ Page of 0 be comprised solely of competing (evidence-free assertions by the petitioners and EPA. By contrast, if the petitioner files a civil action in district court to challenge EPA s denial, the plaintiff must convince the court by a preponderance of the evidence that an unreasonable risk exists. Id. 0(b((B. Because this evidence will often not yet exist at all, and will rarely, if ever, be complete following a short 0-day administrative process, it would violate the plain meaning of the statute and raise significant due process concerns to limit plaintiffs to the administrative record. The legislative history bears this out. Specifically, in the Senate Report, Congress pointed to the limited nature of the administrative record in Section petitions as the reason why de novo proceedings were necessary at the district court level. To quote: In a judicial review of [EPA s] denial of a citizen s petition or failure to act, there would be no record upon which the review could be based, and therefore a de novo procedure is essential to provide the opportunity to develop such a record. S. Rep. No. -, at ( (emphasis added, reprinted in U.S.C.C.A.N., 0.. Section Specifically Allows for Expert Witnesses, and Thus Necessarily Contemplates Expert Discovery Section specifically contemplates experts testifying at trial, thereby further confirming Congress s intent to not limit Section civil actions to the administrative record. As set forth in the statute, a district court may award costs of suit and reasonable fees for attorneys and expert witnesses if the court determines that such an award is appropriate. U.S.C. 0(b((C (emphasis added. By definition, a court that hears expert testimony at trial goes beyond the administrative record before the EPA. See Asarco, Inc. v. U.S. Evntl. Prot. Agency, F.d, (th Cir. 0 (suggesting district court conducted de novo review, despite court s claim to the contrary, because court hear[d] expert testimony instead of confining itself to review of the administrative record. Further, if expert witnesses are permitted to testify at trial, the Federal Rules of Civil Procedure, as well as basic due Section also permits recovery for expert witness fees, which is consistent with the fact that U.S.C. (b permits the reviewing court to consider additional oral and written submissions.

11 Case :-cv-0-emc Document Filed 0/0/ Page of 0 process considerations, require that expert discovery be permitted as well. See Fed. R. Civ. Proc. (a(; McClelland v. Andrus, 0 F.d, (D.C. Cir. ( [D]iscovery must be granted if in the particular situation a refusal to do so would prejudice a party as to deny him due process.. B. REILLY CONFIRMS THAT TSCA CITIZEN SUITS ARE NOT LIMITED TO THE ADMINISTRATIVE RECORD; TRUMPETER S PASSING COMMENT TO THE CONTRARY IS INCOMPATIBLE WITH KRAAYENBRINK In Environmental Defense Fund v. Reilly, 0 F.d (D.C. 0, the D.C. Court of Appeals confronted the question of whether TSCA permits petitioners to simultaneously seek a de novo and APA review of an EPA denial of a Section petition. To resolve this question, the court considered the compatibility of the two remedies. Reilly, 0 F.d at 0. As the court explained, the two remedies are incompatible in major respects, including: The plaintiff in a Section proceeding is entitled to de novo consideration of his petition for issuance of a new rule, but APA review, save in rare instances, must be conducted on the administrative record. The Section plaintiff must demonstrate, by a preponderance of the evidence, a risk affecting health or the environment; on APA review, the agency s action must be evaluated on the record. Id. at 0 (footnotes omitted. As can be seen in this passage, the D.C. Court of Appeals repeatedly distinguished Section s de novo proceeding from a review that is conducted on the administrative record. While this was not the holding of the case, it was one of the reasons the court gave for its holding that the two remedies cannot be pursued simultaneously. See id. ( [T]he Section and the APA remedies are incompatible in major respects, a circumstance inveighing against the theory that Congress sanctioned concurrent use of both.. Accordingly, the Reilly court s comments on the scope of review in a Section de novo proceeding were not merely passing incidental comments, but were part of the explicit rationale for its holding. EPA contends that the Reilly court only addressed Section s standard of review, not its scope. EPA Mot. :-. But this is not so. As noted above, the Reilly court was interested in assessing the compatibility of the two remedies, and in doing so, the Reilly court identified the differences in both the standard and scope of review. While EPA quotes one sentence from Reilly that discusses the standard of review, the two sentences that immediately precede it (which EPA omits discuss the scope of review. See EPA Mot. :- (quoting Reilly, 0 F.d at 0.

12 Case :-cv-0-emc Document Filed 0/0/ Page of 0 Despite this, EPA argues that this Court should eschew reliance on Reilly in favor of Trumpeter Swan Society v. E.P.A., F.d, (D.C. Cir. 0. In Trumpeter, the court was confronted with a question that was totally unrelated to the meaning of Section, let alone to the scope of Section s de novo proceeding. Specifically, the Trumpeter court addressed the question of whether Section ((B of TSCA permits the EPA to regulate spent lead bullets and shot, which the court answered in the negative. Trumpeter, F.d at. Unlike in Reilly, the court s passing comment about the scope of review in Section cases was not part of the rationale for the court s holding on spent lead bullets. Id. at. Accordingly, the Trumpeter court s passing comment about de novo proceedings warrants substantially less weight than the comments in Reilly. See Sheet Metal Workers v. EEOC, U.S., 0 ( (O Connor, J., concurring in part and dissenting in part ( Although technically dicta,... an important part of the Court s rationale for the result that it reache[s] is entitled to greater weight.... ; see also County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, U.S., ( (Kennedy, J., concurring in judgment in part and dissenting in part ( As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also their explications of the governing rules of law. ; WWC Holding Co. v. Sopkin, F.d, n. (th Cir. 00 (statements that provide[] the rationale for our holding and which are integral to our decision are not dicta ; In re Swanson, B.R., (Bankr. C.D. Ill. 00 (citing U.S. v. Bloom, F.d, (th Cir. ( Statements that explain the court s rationale are part of its holding.. The Trumpeter court s passing comment about the scope of review under Section should not just be given less weight than Reilly, it should be disregarded in its entirety. This is because Trumpeter s passing comment is at odds with a recent holding of the Ninth Circuit. Specifically, the Ninth Circuit has squarely held that where citizen suits are not governed by the APA, courts may consider evidence

13 Case :-cv-0-emc Document Filed 0/0/ Page of 0 outside the administrative record. W. Watersheds Project v. Kraayenbrink, F.d, (th Cir. 0; Wildearth Guardians v. U.S. Fed. Emergency Mgmt. Agency, No. CV --PHX-MHM, 0 WL 0, at * (D. Ariz. Mar., 0 ( The Kraayenbrink Court stated unequivocally that the scope of review for ESA citizen-suit claims is not provided for by the APA and as a result parties may submit and the court may consider evidence outside the administrative record..... The Trumpeter court s passing suggestion, therefore, that courts are limited to the administrative record in TSCA citizen suits (despite the fact that the APA does not govern them is incompatible with Kraayenbrink. C. THE PLAIN LANGUAGE OF SECTION IS SIMILAR TO (BUT CLEARER AND STRONGER THAN A CITIZEN SUIT STATUTE THAT THE SUPREME COURT HELD PROVIDES FOR DE NOVO SCOPE OF REVIEW The U.S. Supreme Court recently confronted a question that is similar to the one raised by EPA s motion, albeit in a different statutory scheme. In Kappos v. Hyatt, U.S. (0, the Court addressed whether civil actions under U.S.C. ( Section may introduce evidence in district court that was not considered by the administrative agency. Section provides persons the right to challenge patent denials by the U.S. Patent & Trademark Office (PTO. Similar to EPA s argument here, the PTO argued that district courts are severely limited in considering information that had not been presented to the PTO. Kappos, U.S. at. The Supreme Court rejected this contention and held that parties are free to introduce new evidence in proceedings subject only to the rules applicable to all civil actions, the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Id. at (quoting Hyatt v. Kappos, F.d 0, (Fed. Cir. 0 (en banc. Kraayenbrink addressed the citizen suit provision under the Endangered Species Act (ESA, but its ruling is applicable to for the limited purpose of demonstrating that the court is not limited to the Unlike Section, the ESA citizen suit statute does not include the words de novo, let alone the words de novo proceeding. Further, unlike TSCA citizen suits, ESA citizen suits are generally challenging agency decisions that have undergone the full notice and comment process, and thus have well developed administrative records. For these reasons, the additional discovery issues in ESA cases are often quite limited in scope

14 Case :-cv-0-emc Document Filed 0/0/ Page of 0 The Supreme Court s holding in Kappos is instructive to the question presented here because, as explained herein, the statutory language of U.S.C. is similar to (although not as clear and strong as Section. The statutory text of U.S.C. reads as follows: (emphases added. An applicant dissatisfied with the decision of the Patent Trial and Appeal Board in an appeal under section (a may, unless appeal has been taken to the United States Court of Appeals for the Federal Circuit, have remedy by civil action against the Director in the United States District Court for the Eastern District of Virginia if commenced within such time after such decision, not less than sixty days, as the Director appoints. The court may adjudge that such applicant is entitled to receive a patent for his invention, as specified in any of his claims involved in the decision of the Patent Trial and Appeal Board, as the facts in the case may appear and such adjudication shall authorize the Director to issue such patent on compliance with the requirements of law. The Supreme Court began its analysis of this statute by emphasizing the fact that it uses the words civil action. Kappos, U.S. at. An en banc opinion of the Federal Circuit, which the Supreme Court affirmed, emphasized this fact as well. Hyatt, F.d at. This is instructive because Section also uses the term civil action to describe the citizen suit remedy under TSCA. U.S.C. 0(b(. Next, the Supreme Court drew attention to the fact that the district court is authorized to adjudge that such applicant is entitled to receive a patent... as the facts in the case may appear. Kappos, U.S. at. The Federal Circuit s en banc panel emphasized this fact as well, on the grounds that it shows Section does not merely afford judicial review of agency action. Hyatt, F.d at. In other words, Section places the focus on whether the plaintiff can prove his entitlement to a patent, which is a distinct inquiry from the backwards-looking focus on the merits of the PTO s decision. This is exactly what TSCA does as well, as it places the burden on the plaintiff to prove to the satisfaction of the court that an unreasonable risk exists, which is distinct from a backwards-looking focus on EPA s reasons for denying the administrative petition. U.S.C. 0(b((B.

15 Case :-cv-0-emc Document Filed 0/0/ Page of 0 Finally, and perhaps most importantly, the Supreme Court concluded its textual analysis by observing that: By its terms, neither imposes unique evidentiary limits in district court proceedings nor establishes a heightened standard of review for factual findings by the PTO. Kappos, U.S. at (emphasis added. Similarly, the Federal Circuit s en banc panel observed: The statute provides no indication that this civil action is somehow different from a customary civil action. In particular, does not provide that unique rules of evidence, separate from or supplementary to the Federal Rules of Evidence that apply to all civil actions, control to limit an applicant s ability to introduce new evidence before the district court. Hyatt, F.d at. Similarly, by its own terms, TSCA: (i does not provide any indication that a Section civil action is somehow different from a customary civil action ; (ii does not provide any unique rules of evidence, separate from or supplementary to the Federal Rules of Evidence ; and (iii does not limit an [petitioner s] ability to introduce new evidence before the district court. The plain language of Section is actually clearer and more compelling than the plain language of Section in showing that the normal rules of civil actions must apply. This is because, unlike Section, Section expressly identifies the civil action as being a de novo proceeding. U.S.C. 0(b((B. As noted earlier, federal courts use the term de novo proceeding interchangeably with de novo trial as a proceeding which includes both a de novo standard and de novo scope of review. As the Federal Circuit in Hyatt noted, a de novo proceeding is one in which the district court s analysis of evidence does not depend on whether the [agency] had also received the same evidence. F.d at. Accordingly, the fact that Section includes the words de novo proceeding, whereas Section does not, makes it an easy call that TSCA citizen suits should be governed by the ordinary federal rules of civil procedure and evidence. /// /// ///

16 Case :-cv-0-emc Document Filed 0/0/ Page of 0 D. EPA S ARGUMENTS DO NOT WITHSTAND SCRUTINY In its motion, EPA advances a number of arguments that do not withstand scrutiny. Plaintiffs now address these arguments.. EPA s Assertion About What Congress Intended Flatly Contradicts the Legislative History of Section EPA contends that the the plain language of the statute demonstrates that Congress intended that... the scope of the Court s review is limited to the administrative record before the Agency when it denied Plaintiffs administrative petition. Mot. at :- (emphasis added. This contention, however, is directly at odds with Congress s own explanation of its intent. As noted earlier, the Senate Report to the TSCA bill explicitly states that the district court will gather[] evidence and that the de novo procedure is essential to provide the opportunity to develop... a record. S. Rep. No. -, at & ( (emphasis added, reprinted in U.S.C.C.A.N., & 0. The de novo proceeding remedy was thus provided for the express purpose of develop[ing] a record, which is diametrically opposite to Congress wanting to confine district courts to the administrative record. EPA makes no attempt to explain how its declaration of Congress s intent is compatible with these unmistakably clear pronouncements in the Senate Report.. The Plain Meaning of the Words Such Petition Is Not Interchangeable with Administrative Record EPA s contention that Congress intended to limit the scope of review to the administrative record is premised on the purported plain language of the words such petition. EPA mot. -. It is not at all clear or obvious, however, why the term such petition is interchangeable with the term administrative record ; indeed the legislative history and statutory text strongly suggest that such petition simply refers to the action being requested. First, the Senate Report states that there would be no record upon which the [district court] review could be based, which suggests that Congress did not consider the petition and EPA response to qualify as a competent record for judicial review. S. Rep. No.

17 Case :-cv-0-emc Document Filed 0/0/ Page of 0 -, at ( reprinted in U.S.C.C.A.N., 0. Second, the words such petition occur repeatedly throughout Section and almost always in reference to the EPA granting or denying it. See U.S.C. 0(b( ( The Administrator may hold a public hearing... to determine whether or not such petition should be granted. ; id. 0(b( ( If the Administrator denies such petition, the Administrator shall publish in the Federal Register the Administrator s reasons for such denial. ; id. 0(b((A ( [I]f the Administrator fails to grant or deny such petition within the 0-day period..... Obviously, EPA is not granting or denying the administrative record, nor is it granting or denying the facts stated in the petition. Instead, EPA is denying the rulemaking being requested. The most plausible interpretation of the words such petition, therefore, is that they refer to the rulemaking that petitioners seek to initiate. EPA makes no attempt to explain why this is not so.. Congress Unequivocally Waived EPA s Sovereign Immunity EPA appears to argue that the scope of review must be narrowly construed on the grounds that the citizen suit provision is a waiver of the United States sovereign immunity. EPA Mot. :- & :0-. The Agency has failed to offer any authority for this implied proposition. The one case that EPA cites merely affirms the common rule that any waiver of the National Government s sovereign immunity must be unequivocal. U.S. Dep t of Energy v. Ohio, 0 U.S. 0, (. In other words, it is the waiver of sovereign immunity itself that must be strictly construed (i.e., does the statute permit suits against the federal government?, not the subsequent interpretation of what evidence a court can consider. See Kappos, U.S. at (holding that the full panoply of federal rules of civil procedure and evidence apply in citizen suits against PTO. Here, Section explicitly authorizes citizens to file suit against the EPA, and specifically authorizes district courts to compel EPA to initiate rulemaking proceedings. Congress was thus unequivocal in waiving the United States s sovereign immunity from TSCA citizen suits.

18 Case :-cv-0-emc Document Filed 0/0/ Page of 0. EPA Cites APA Case Law as Authority for the Scope of Review, But APA Does Not Apply to Section De Novo Proceedings EPA repeatedly cites inapposite APA case law as authority for the scope of review for de novo proceedings under Section. For example, EPA quotes Hall v. Norton, F.d, (th Cir. 00 for the proposition that the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. EPA Mot. :-:. What EPA fails to mention is that this passage from Hall is explicitly addressing the appropriate APA standard of review. See Hall, F.d at (quoting Fla. Power & Light Co. v. Lorion, 0 U.S., (. Similarly, the EPA cites San Luis & Delta-Mendota Water Authority v. Locke, F.d, - (th Cir. 0 to define the four circumstances where courts can consider extra-record evidence. EPA Mot. at :-. San Luis is an APA case. EPA s reliance on these APA cases is misplaced because both Reilly and the Ninth Circuit precedent make clear that the APA is inapplicable to TSCA citizen suits. See, e.g., Washington Toxics Coal. v. Evntl. Prot. Agency, F.d, (th Cir. 00 (holding that APA does not govern when statute independently authorizes a private right of action, because the private right of action provides an express, adequate remedy. Accordingly, APA case law is inapposite to the scope of review at issue here.. EPA Cites ERISA Case Law as Authority for the Scope of Review, But ERISA Only Provides for a De Novo Standard of Review and Is Thus Inapposite EPA cites ERISA case law for authority on what evidence a court may consider in a de novo scope of review, yet the de novo review in ERISA cases is limited to the standard of review. See Firestone Tire & Rubber Co. v. Bruch, U.S.,, ( (holding that basic trust principles require application of a de novo standard of review in ERISA cases. The question about what Unlike the TSCA statute, where the statutory text explicitly requires citizen suit proceeding[s] to be de novo, the words de novo do not appear anywhere in the ERISA statute. See Firestone, U.S. at ( ERISA does not set out the appropriate standard of review for actions under (a((b challenging benefit eligibility determinations..

19 Case :-cv-0-emc Document Filed 0/0/ Page of evidence can be considered in ERISA cases is thus significantly different than the question raised here. In ERISA cases, the question is whether, and under what circumstances, a court conducting a de novo standard of review must look beyond the administrative record to ensure an informed and independent review of the administrator s decision. Here, by contrast, the question is what evidence a court can 0 consider when conducting a de novo proceeding (which encompasses both the standard and scope of review. The scope of review in a de novo proceeding is significantly broader because the admissibility of new evidence is not conditioned on being necessary to reviewing the merits of agency s decision. The ERISA case law is thus inapposite to the scope of review under TSCA.. The Fact that Plaintiffs Had an Opportunity to Make Their Case to EPA Is Not a Basis for Denying a De Novo Proceeding EPA argues that the district court should be limited to considering the administrative record because Plaintiffs had ample opportunity to make their case to EPA. EPA Mot. :. There is nothing, however, in the statutory text or legislative history to support this contention. The statute, of course, requires petitioners to make their case to EPA. See U.S.C. 0(b( (requiring petitioners to set forth the facts which it is claimed establish that it is necessary to issue, amend, or repeal a rule. Since every petitioner must make their case to EPA, EPA s interpretation, if accepted, would effectively disqualify every citizen petitioner from a de novo scope of review. This is certainly not what Congress intended, as Congress established the de novo proceeding for the express purpose of develop[ing] a See Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, F.d, (th Cir. (addressing the scope of review that a district court may use upon de novo review of a plan administrator s decision and holding that new evidence may be considered under certain circumstances to enable the full exercise of informed and independent judgment. In the initial Joint Case Management Statement, Plaintiffs counsel cited ERISA case law for guidance on the scope of review in this case. ECF No., at. At that time, Plaintiffs counsel had not yet had an opportunity to comprehensively review the case law to assess the applicability of ERISA to TSCA. Since the Court has ordered the parties to draft a new Joint Case Management Statement, Plaintiffs intend to amend the language in the Statement so that it no longer cites or relies upon this inapposite case law.

20 Case :-cv-0-emc Document Filed 0/0/ Page 0 of 0 record. S. Rep. No. -, at (, reprinted in U.S.C.C.A.N., 0. EPA s contention that Plaintiffs had ample opportunity to make their case does not salvage the argument. Just as beauty lies in the eye of the beholder, whether the opportunity was ample or not is intrinsically subjective and standard-less. Indeed, Plaintiffs disagree with EPA s characterization here: Plaintiffs had an opportunity to make their case, but there was nothing about this opportunity that went beyond the ordinary. The fact that [t]here was no limit placed on the length of [Plaintiffs ] petition or the type or number of references that Plaintiffs could attach to it (EPA Mot. at :- is the default rule for every citizen petition and thus hardly noteworthy. Moreover, the fact that Plaintiffs had an opportunity to present their views to EPA orally (EPA Mot. at : means little since EPA refused to answer any questions at the meeting, and never held any hearings where Plaintiffs could respond to EPA s scientific contentions, thereby denying Plaintiffs any opportunity to understand and respond to EPA s positions prior to publication of EPA s denial in the Federal Register. But, even if Plaintiffs had ample opportunity to make their case, there is nothing in the statute that conditions or otherwise limits the right to a de novo proceeding on this nebulous ground. Indeed, the statute commands, in no uncertain terms and without exception, that a plaintiff in a TSCA citizen suit shall be provided an opportunity to have such petition considered by the court in a de novo proceeding. U.S.C. 0(b((B (emphasis added. It is instructive here to consider the facts in Reilly. In Reilly, the petitioners submitted a far longer brief than Plaintiffs did here ( pages vs. pages; the EPA held several meetings where the petitioners presented their concerns which were documented by EPA in the form of minutes ; and EPA actually created an administrative record. See Thomas, F. Supp. at (stating that petitioners had submitted a -page petition ; 0 Fed. Reg., at (referencing a meeting following submission of... petition in which petitioners provided further input to EPA; id. at (notifying the public that EPA had created an administrative record which contained inter alia minutes of meetings. Yet, despite the more extensive record at issue in Reilly, the

21 Case :-cv-0-emc Document Filed 0/0/ Page of district court permitted discovery. See Thomas, F. Supp. at (ordering parties to notify court as to the amount of time needed for additional discovery. The district court in Reilly thus appears to have recognized what the plain meaning of the statute makes clear: that the right to a de novo proceeding is not limited or curtailed by the perceived extent to which plaintiffs were able to make their case to EPA. III. CONCLUSION Congress has instructed that Section citizen petitioners shall be provided a de novo proceeding. The plain meaning of these words, together with the clearly expressed intent of Congress in the legislative history, make it abundantly clear that TSCA citizen suits are not limited to the administrative record. Accordingly, this Court should deny EPA s motion for a protective order. January, 0 Respectfully submitted, /s/ Michael Connett. MICHAEL CONNETT Attorney for Plaintiffs 0

22 Case :-cv-0-emc Document Filed 0/0/ Page of CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served by Notice of Electronic Filing this th day of January, 0, upon all ECF registered counsel of record using the Court s EM/ECF system. /s/ Michael Connett. MICHAEL CONNETT Attorney for Plaintiffs 0 CERTIFICATE OF SERVICE